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CSIS defies orders on torture

In stunning testimony that flatly contradicts stated Conservative government policy, a senior CSIS official admitted the spy agency still uses information that might have been obtained by torture in national security investigations "if lives are at stake."

Maher Arar pauses during a news conference in Ottawa Jan. 26, 2007. Canada formally apologized to Arar, who was deported to Syria by U.S. agents after Canadian Police mistakenly labeled him an Islamic extremist, and offered him a $10.5-million settlement.

By:Tonda MacCharlesOTTAWA BUREAU, Published on Wed Apr 01 2009

OTTAWA – In stunning testimony that flatly contradicts stated Conservative government policy, a senior CSIS official admitted the spy agency still uses information that might have been obtained by torture in national security investigations "if lives are at stake."

Geoffrey O'Brian, a lawyer and CSIS adviser on operations and legislation, told the Commons public safety committee there is no absolute ban on using intelligence that may have been obtained from countries with sketchy human rights records on torture.

"Do we use information that comes from torture? The answer is we only do so if lives are at stake," O'Brian said.

The admission appeared to fly in the face of clear recommendations from Justice Dennis O'Connor in the Maher Arar inquiry against receiving or distributing information when there is "a credible risk" it stemmed from torture.

It also contradicted assertions by the Conservative government, which has long argued the practices that led to the detention and torture of four Canadian citizens – which were condemned in two public inquiries – happened under the previous Liberal government. The Conservatives insist policies under its watch have changed.

The office of Peter Van Loan, minister of public safety, moved to clarify the Conservative government's policy late in the day by email: "The Government of Canada does not condone torture. Period."

O'Brian said there are "unusual" and "almost once-in-a-lifetime situations" where information obtained through torture "can be of value to the national security of the country."

He argued the executive branch is "bound" to protect the security of its citizens, even if such information can "never" be used in a court proceeding.

"The simple truth is, if we get information which can prevent something like the Air India bombing, the Twin Towers – whatever, frankly – that is the time when we will use it despite the provenance of that information," he said.

In contrast, the RCMP told MPs it considers intelligence extracted through torture to be automatically "unreliable."

"I would like to be clear there is no absolute ban on the use of any information received by the RCMP," said Gilles Michaud, director general of the RCMP's national security and criminal operations. "However, we do not use information whose reliability, accuracy and relevance is suspect. Information knowingly extracted under torture would, by definition, be unreliable."

Incredulous Liberal and Bloc Québécois MPs said the CSIS approach "creates a market for torture."

Liberal Mark Holland said it shows the findings of the public inquiries "have fallen on deaf ears."

He did not accept the CSIS explanation that information stemming from torture would be used only to prevent an imminent catastrophic attack.

"This is not an episode of 24, okay?"

The admission came as officials from CSIS, the RCMP and the Canada Border Services Agency testified they have responded to recommendations and findings by the two judge-led inquiries into the Mideast torture ordeals of Maher Arar, Ahmad El-Maati, Abdullah Almalki and Muayyed Nureddin.

All said their agencies have improved the information-sharing practices that were criticized.

But the RCMP and CSIS stopped well short of apologizing to the other three Canadian men who were tortured, even though they apologized to Arar at the same committee long before his civil lawsuit was settled out of court.

O'Brian said they were instructed not to say anything to jeopardize the government's position in civil lawsuits filed by the other three.

He was blunt: CSIS shares information with agencies in 147 countries, and the "vast majority of those countries have human rights records that are not as glowing as ours." CSIS tries to assess the reliability of "every bit of information it gets," but O'Brian conceded the agency "normally" doesn't know how information was obtained.

CSIS has developed a new "caveat" or caution on information to be shared when there is a risk someone may be detained abroad, and developed a new agreement under which it shares information with the RCMP, which shouldered most of the blame for the Arar scandal.

But O'Brian revealed CSIS has not ceased using inflammatory terms such as "jihadist" and "Islamic extremist" that both public inquiries had condemned.

"It depends on the status of the investigation. If it's early in the investigation, we may be simply seeking information.

"Later in an investigation, we may be able to come up with an assessment."

O'Brian assured Canadians CSIS is subject to ministerial control, and to review by the Inspector General and the civilian watchdog agency, Security Intelligence Review Committee, and that "mistakes" can be addressed.

The Liberals argued there should be an outright prohibition against accepting information from countries known to practise torture.

Anything less risks sending the message to other countries and shadowy agencies that Canada will use "worthwhile" information "if you torture them well enough," said Holland.

"It creates a market for torture," he said. "We're essentially condoning that torture ... That's a dangerous message to be sending out there."

Holland said although CSIS is subject to oversight, it shares information with other agencies like the RCMP or the CBSA that do not have similar watchdogs.

"It's quite disturbing," said NDP MP Jack Harris. But he added: "If someone says we have information that someone is about to blow up a building, to say that you wouldn't check it out would be silly. But I don't know if that's what he's talking about."

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